Twelve days after Massachusetts’ Concord District Court put Julie Eldred on probation for a larceny charge in the summer of 2016, she tested positive for fentanyl and was sent to MCI Framingham without bail for violating a condition that she “remain drug free.”

But Eldred suffers from opioid use disorder, said her lawyer Lisa Newman-Polk, Esq, LCSW and opioid use disorder is a chronic brain disease. Relapse is a symptom.

Newman-Polk, who practices in Eldred’s hometown of Acton, Massachusetts, believes the probation condition requiring her client to stay drug free is unconstitutional and is asking for its removal from the array of punishments courts can impose.

The state argues that drug free and testing conditions enable probation officers to evaluate probationer’s recovery progress and determine if inpatient treatment may be needed.

Now it’s up to the Massachusetts Supreme Judicial Court to decide in the case of Commonwealth v. Eldred after an Oct. 2 hearing. A Webcast of the oral arguments at that hearing can be viewed online at the Suffolk University Law School Web site. A decision is expected in early 2018.

Court filings in this potentially precedent-setting case contain lengthy discussions of the science of addiction with mental health experts submitting testimony for and against the brain disease model of addiction. And, the case is drawing national attention because a ruling in Eldred’s favor could mean dramatic changes to the way the criminal justice system treats addiction.

Newman-Polk says she is not arguing against drug testing.

“The issue is what can the court do when somebody tests positive,” she said. “It needs to be a treatment response.”
Newman-Polk is also a licensed certified social worker who treated addiction and other mental health disorders as an outpatient therapist and as a mental health professional at the men’s maximum security prison in Massachusetts. She compares a defendant battling addiction to one who has bipolar disorder or schizophrenia.

“The court would never dream to order that that person no longer experience mania or psychosis,” she explained.
The National Association of Drug Court Professionals submitted a friend of the court brief supporting the drug free condition, contending that a combination of treatment, monitoring and sanctions is needed to set drug users straight. The brief states:

“Permitting the criminal justice system to maintain this flexibility is the best way to ensure that offenders continue to receive effective treatment that can change and respond to growth in our understanding of addiction.”

“We don’t have cancer courts, we don’t have Alzheimer’s courts and there’s a good reason,” said Gene M. Heyman, Ph.D., senior lecturer at Boston College Department of Psychology. “It would be unreasonable to say, ‘Stop having cancer.’ We do have courts about drug use because people do stop when there are consequences.”

Heyman is co-author of a friend of the court brief disputing the characterization of addiction as a brain disease. He said research shows people choose to quit drugs when faced with legal concerns, economic pressures and the desire to improve relationships with family members.

Eldred had already begun treatment with suboxone at the time she relapsed on probation, according to court documents. She was held for 10 days until a bed opened up for her in an inpatient treatment center, a move prosecutors argue may have helped save her life, given the dangerously potent nature of fentanyl. The U.S. Centers for Disease Control and Prevention says fentanyl is 50 to 100 times more potent than morphine.

The day of her drug test was the Friday before Labor Day weekend and her parents were out of town, according to court documents.

Martha T. Kane, Ph.D., clinical director of the Center for Addiction Medicine, The Substance Use Disorders initiative, and Ambulatory Psychiatry, all at Massachusetts General Hospital, evaluated Eldred last year after she started to access treatment again. Kane also met with Eldred’s parents.

“Julie was scrambling to get a higher level of care,” Kane said. “She ended up being put into jail which doesn’t seem fair.”

Kane equates jail time for a relapse with being punished for a disease one can’t control.

“It’s simple to say someone who relapses needs to be held accountable and punished and then they won’t do it again,” Kane said. “It’s an absolute failure to understand what it means to have a brain-based disorder over which you do not have control over at any given moment.”

Kane said Heyman and the Commonwealth perceive drug addiction in a stigmatizing and punishing way.

“I appreciate that people who are older, who trained a while back, who may be in recovery themselves and got recovery by going to AA and just really toughing it out, they assume and presume that this can be managed in this way, whether it is will or something like that,” Kane said.

But brain imaging now shows how drug use affects the frontal lobe area of the brain responsible for rational decision making, making a person more subject to their impulses, Kane said.

“I pretty much assume that someone who takes the opposite position just hasn’t really figured out yet where the science is going on this,” Kane said.

A friend of the court brief filed by the Massachusetts Medical Society (MMS) argues that stress caused by the requirement to remain asymptomatic can compound the risk of relapse. Punitive sanctions based on relapse alone have not been shown to be effective in deterring or rehabilitating individuals with substance use disorder, according to the brief.

MMS is joined by the American Academy of Addiction Psychiatry, the Association of Behavioral Healthcare, the Grayken Center for Addiction Medicine at Boston Medical Center, the Massachusetts Organization for Addiction Recovery, the Massachusetts Society for Addiction Medicine and the Northeastern University School of Law’s Center for Health Policy and Law.

The American Civil Liberties Union of Massachusetts also submitted a brief on Eldred’s behalf arguing that requiring addicted probationers to remain drug free will put people behind bars for suffering from a disease, disrupting treatment and endangering lives. Additionally, the ACLU argues that the drug free requirement could disproportionately impact the poor and people of color.

Assistant Attorney General Martha Granik noted in a court brief that Eldred did not object to the condition that she comply with the drug free condition at her sentencing hearing.